When dealing with pupils with challenging behaviour and emotional difficulties, risk assessment is vital says Amelia Wallington

Dealing with challenging behaviour is high on the political agenda. Media coverage continues to highlight the challenges and dangers posed to teaching staff by violent and disruptive pupils.

With the current climate for greater inclusion, mainstream schools must increasingly deal with pupils with a wide variety of behavioural needs. Charles Clarke’s recent announcement that schools will be required to take a share of disruptive pupils indicates that this is likely to continue.

At the same time, schools are facing pressure to achieve ever higher academic standards. Whole-school policies are advocated for managing the behaviour of all pupils. But there are specific approaches designed for children with emotional and behavioural difficulties (EBD).

What are ‘EBD’?

In general terms, a child with EBD will present with negative behaviour that may hinder his or her emotional, educational and social development.

What’s the best way to deal with EBD?

There has been much research conducted about the most effective way to deal with children with EBD. What can be said with certainty is that a flexible and objective approach will be required because of the diverse range of range of behaviours encompassed by the term:

On-the-spot decisions
Even though there may be a programme of support, involving a number of specialists, for a particular child, staff will often be faced with difficult situations — and with the need to make quick decisions when a child presents with challenging and violent behaviour.

We will now look at the powers available to staff for dealing with challenging behaviour, and then we will consider the crucial role played by risk assessment.

Physical intervention

Teachers, and other staff authorised by the head of a school, may need to use physical force to control or restrain violent pupils.

Legal powers
Section 550A of the Education Act 1996 sets out a statutory power for teaching staff to use reasonable force in certain circumstances. DfES Circular 10/98, The Use of Force to Control or Restrain Pupils, also provides useful guidance in this area.

Section 550A says that teaching staff may use such force as is reasonable in all the circumstances to prevent a pupil from:

  • committing an offence
  • causing personal injury, or damage to the property of any
    person (including the pupil’s own)
  • engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school, or among any of its pupils

Self-defence and emergencies It is important to note that section 550A does not cover all the situations in which it might be reasonable for a member of staff to use reasonable force. For example, everyone has the right to defend him or herself against a physical attack — provided s/he does not use a disproportionate degree of force to do so.

Similarly, in an emergency — for example if a pupil were to be at immediate risk of injury, or on the point of inflicting injury on someone else — any member of staff would be entitled to intervene.

Section 550A therefore makes it clear that teachers, and other authorised staff, are also entitled to intervene in other, less extreme, situations.

Who can use ‘reasonable force’? The Act allows all teachers at a school to use reasonable force to control or restrain pupils. It also allows other people to do so, in the same way as teachers, provided they have been authorised by the head teacher to have control or charge of pupils.

Head teachers should identify people, other than teachers, whom they wish to authorise to have control or charge of pupils — and therefore be able to use force if necessary.

Authorisation may be on a permanent or long-term basis because of the nature of the person’s job, or on a short-term basis for a specific event, such as a school trip.

The head should explicitly inform those concerned, and ensure that they are aware of, and understand, what the authorisation entails.

What form should intervention take?

Physical intervention might include:

  • holding
  • pushing
  • pulling
  • leading a pupil by the arm or hand
  • blocking a pupil’s path
  • physically interposing between pupils
  • in extreme cases, using more restrictive holds

Risk assesment

The Health and Safety Executive has made it clear that violence in the workplace must be assessed and controlled in the same way as any other risk to health and safety.

Of violence in schools, the Health and Safety Executive says: ‘Violence should never be accepted as “one of those things”. It must be assessed and controlled in the same way as any other risk to health and safety.’

Why risk assessment protects you

Whilst they are not the only strategy to be employed, risk assessments to assess the likelihood and the severity of potential harm posed by any pupil with a propensity to violence are essential to the Health and Safety of all those that have contact with those pupils.

Undertaking a risk assessment should minimise the chances of the identified risk occurring. But risk assessments are important, too, if the risk becomes reality. This is because they document that the school considered such events might occur, and did all it reasonably could in the circumstances to prevent that from happening.

What if the school was unaware of the risk?
This advice is all well and good if schools have information about a pupil that determines that s/he presents a risk to others, including staff. But what if such information is not readily available at schools?

The rape of a teacher by a pupil, 16, at a mainstream central London school shows how serious the problem can be. The boy had a history of abusive behaviour and sexual aggression. But the school had not been made aware of this and so had failed to carry out a risk assessment or make arrangements to protect staff or other pupils.

It is unclear whether the school was not informed of the pupil’s history by omission, or deliberately
— for reasons of confidentiality. It is hoped that the case will lead to clearer guidance on:

  • who should be informed of a child or young person’s offending behaviour
  • how, and by whom, a risk assessment should be carried out in order that schools can comply with their legal obligations to staff

Connection with ‘safeguarding’ The Every Child Matters reform programme continues to develop policies and strategies designed to safeguard and promote the welfare of pupils. A key part of this reform programme is the recognition that to achieve better outcomes for pupils, relevant information must be shared with all professionals who come into contact with a pupil — including relevant teachers.

It is hoped that by sharing such information, a better outcome for staff will also be achieved.

Such behaviour may include:

  • impaired social interaction
  • impulsivity, distractibility, inattentiveness
  • attention-seeking behaviour — often negative
  • self-injurious behaviour
  • withdrawal
  • aggressive or anti-social behaviour

Strategies include the need to establish supportive links with parents and families.

Essentially, though, being able to give children with EBD a relevant education is likely to demand the help of a multi-agency team, including social services, counsellors, psychologists and psychiatrists working together with teaching staff.

What force is ‘reasonable’ There is no legal definition of ‘reasonable force’ — what is reasonable will depend on the circumstances of a particular case. There are two considerations:

1. The use of force can be regarded as reasonable only if the circumstances of the particular incident warrant it. The use of any degree of force is unlawful if the particular circumstances do not warrant it. Physical force could not be justified to stop a pupil committing a trivial misdemeanour, or in a situation that clearly could be resolved without force.

2.

The degree of force employed must be in proportion to the circumstances of the incident and the seriousness of the behaviour or consequences it is intended to prevent.
3. Any force used should always be the minimum necessary.
4. Whether it is reasonable to use force, and the degree of force reasonably used, also depends on the age, understanding, and sex of the pupil concerned.

Health and Safety at Work Act
The Health and Safety at Work Act 1974 says that an employer must:

  • ensure its employees’ safety
  • ensure that others are not exposed to health or safety risks, so far as is reasonably practicable
  • (if in control of premises) ensure that those premises are safe and without risk to health so far as is reasonably practicable.

These obligations extend to the provision of a safe system of work, the provision of information, instruction, training and supervision, and the provision and maintenance of a working environment that is safe and without risk to health.

Failure to comply with these duties is punishable by a fine up to £20,000.

How to carry out risk assessmentA risk assessment for pupils with EBD should identify:

1. behaviours of concern

2.

who might be at risk and how
3. conditions that increase the probability of the behaviour occurring
4. primary preventative strategies. These will include non-physical-intervention strategies such as changing the environment to prevent an outburst occurring
5. early behavioural indicators that the pupil may be losing self-control
6. secondary preventative strategies. This involves identifying initial signs of agitation and ways of defusing them
7. physical interventions that may need to be employed. (see below)
8. procedures to be followed after an incident
9. how any behaviour management plans are to be recorded and reviewed
10. who has agreed with the plan
11. a specific review date

Amelia Wallington is a solicitor at Browne Jacobson. She was assisted in the writing of this article by Judith Head